Court Opens Door To Drug Tests For Jail Guards

Mandatory drug testing could be required for most correctional officers at Cook County Jail as a result of a ruling this week by the U.S. Court of Appeals in Chicago.

But the Appeals Court rejected a program announced by county officials in 1986 that would have forced all jail employees to submit to annual urine tests. The court said the broader plan was an unconstitutional intrusion into the privacy of employees.

Because administrative or clerical employees at the jail are unlikely to come into contact with inmates or have an opportunity to smuggle drugs to the inmate population, the county ``gains nothing by testing them,`` the court said.

This is the first ruling by the Appeals Court here on mandatory drug testing since two controversial decisions by the U.S. Supreme Court earlier this year.

An estimated 1,700 jail employees would have been required to submit to once-a-year drug tests on short notice under the county`s program, which was announced by then Sheriff Richard Elrod. The program was never fully implemented, at first because of opposition from unions representing correctional officers.

Later, Elrod and his successor, Sheriff James O`Grady, put the drug-testing program on hold after the American Civil Liberties Union filed a federal lawsuit in September, 1986, on behalf of jail employees. A year later, Judge Susan Getzendanner of U.S. District Court ruled that the program was unconstitutional and prohibited its implementation.

``Employees have a reasonable expectation of privacy in the act, place and decision of urination,`` said Getzendanner, who since has left the bench and returned to private law practice. She also said that a positive result from the drug test would not necessarily prove that an employee was smuggling drugs into the jail.

Earlier this year, though, the U.S. Supreme Court ruled that mandatory drug testing was allowed under certain circumstances. The U.S. Customs Service, the court said, could compel urinalyses for employees seeking promotions or transfers to certain jobs, and railroad employees could be required by the Federal Railroad Administration to submit to blood and urine tests after major accidents.

As a result of the high court decisions, the Appeals Court here suggested that the county could set up a constitutionally valid program requiring drug tests for certain jail guards-those with regular access to the inmate population, those with a reasonable opportunity to smuggle drugs into the jail and those who carry guns.

Harvey Grossman, legal director of the Illinois ACLU, said the Appeals Court clearly rejected the idea of wholesale testing.

But Edward Theobald, O`Grady`s legal adviser, said nearly all of the jail guards would meet the criteria set by the Appeals Court. The sheriff has responsibility for supervising the county jail.

Grossman said he questions whether a drug-testing program would be effective, even if were more limited in scope. Evidence introduced during the trial before Getzendanner also suggested that only a very small percentage of guards would likely be found to be serious users of illegal drugs.

The county, though, had argued that the broad drug-testing program was necessary to prevent guards from smuggling narcotics to inmates and to maintain the public perception of the integrity of correctional officers. At the trial, Phillip Hardiman, the jail`s former executive director, testified that guards smuggled drugs into the jail both to sell to inmates and for their own use.

The latter argument was rejected by the Appeals Court.

``A generalized interest in the integrity of the work force, however, is not enough to overcome the privacy interests at issue,`` wrote Judge Joel Flaum for the three-member Appeals Court panel. But, Flaum said, the county had a substantial interest in maintaining jail security and preventing drugs from being smuggled into the inmate population.